delivered the opinion of the court.

The sole ground of error is that the court below committed an abuse of discretion in mulcting costs against a defendant. The latter had presented a demurrer and, given time to plead, defaulted. To attack the award of costs made in this action the defendant and appellant cites the case of Zorrilla v. Orestes, 28 P. R. R. 698.

In that case the defendant first demurred and when the demurrer was overruled submitted, and the court refused to award costs to complainant. We found in effect that the defendant there' had presented meritorious grounds of demurrer and partially for this reason refused to say the *612court below bad committed an abuse of discretion in not finding tbe defendant guilty of temerity. But tbe principal ground of tbat decision was tbat tbe court bad a discretion in considering tbe degree of temerity. If in tbat case tbe court bad awarded costs we in all probability would not have disturbed tbe judgment. In a matter of tbis kind tbe discretion is practically unassailable. Tbe amount of fees is a different matter, but tbe Case bas not reached tbat point.

There were facts in tbis case from which tbe court bad a right to conclude tbat defendant could readily have known that tbe property be bad bought in execution was not necessary to satisfy tbe judgment then existing against tbe present complainant who brought suit to annul tbe unnecessary part of tbe execution sale. But tbe present defendant attempted to fight off the judgment by a demurrer.

Under any circumstances we find no abuse of discretion and tbe judgment must be

Affirmed.